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Show 378 APPROPRIATION OF WATER the quantity actually applied at the time the appropriation is made.762 "He would be entitled, not only to his needs and necessities at that time, but to such other and further amount of water, within the capacity of his ditch, as would be required for the future improvement and extended cultivation of his lands, if the right is otherwise kept up."763 And the actual quantity must be such as the appropriator could put to a useful purpose on his land within a reasonable time by the use of reasonable diligence.764 This principle-that an appropriation is not necessarily to be measured by the application of the water during the first one or two, or even a series of years-"was not intended * * * to give an appropriator a quarter of a century in which to apply water to a beneficial use."765 The court had reference to an individual appropriator, not to a great project the magnitude and complicated conditions of which present a very different problem. In the instant case, within a period of 24 years, the appropriator had reclaimed not quite one-half of his 160-acre tract. So he was accorded a right for only the quantity of water necessary to irrigate the land so reclaimed. Development of the rule.-The rule of gradual development carried two invariable conditions which the appropriative claimant must meet: (a) the enlarged use of water over that accomplished in the early stages must have been within the original intent of the appropriator, and claimed at the time of initiating the appropriation; and (b) the intending appropriator proceeded with reasonable diligence to apply the water to the use intended.766 762 The claim of an appropriator must be for a useful and beneficial purpose or in contemplation of a future use of the water for such purpose: Weaver v. Eureka Lake Co., 15 Cal. 271,275(1860). 763Hewitt v. Story, 64 Fed. 510, 514 (9th Cir. 1894). 764Senior v. Anderson, 115 Cal. 496, 503-504, 47 Pac. 454 (1896). 765Bennett v. Nourse, 22 Idaho 249, 256, 125 Pac. 1038 (1912). 766 "It is not requisite that the use of water appropriated be made immediately to the full extent of the needs of the appropriator. It may be prospective and contemplated, provided there is a present ownership or possessory right to the lands upon which it is to be applied, coupled with a bona fide intention to use the water, and provided that the appropriator proceeds with due diligence to apply the water to his needs." St. Onge v. Blakely, 76 Mont. 1, 23, 245 Pac. 532 (1926). "But where such appropriator, for illustration, only originally intended to irrigate forty acres of land, and he applied water on such land, this forty acres would be the limit of his right as such appropriator under his original appropriation." State ex rel. Community Ditches v. Tularosa Community Ditch, 19 N. Mex. 352, 371, 143 Pac. 207 (1914). See also generally regarding the rule of gradual development, State v. Crider, 78 N. Mex. 312, 431 Pac. (2d) 45, 48-49(1967). Some other court opinions in which both conditions were stated are: Barnes v. Sabron, 10 Nev. 217, 239-240, 244 (1875); Union Mill & Min. Co. v. Dangberg, 81 Fed.73,113 (C.C.D.Nev. 1897);Elliot v. Whitmore, 23 Utah 342, 352-353,65 Pac. 70 (1901); Smith v. Duff, 39 Mont. 382, 387-388, 102 Pac. 984 (1909); Json v.Sturgill, SI Oreg. 109, 116, 109 Pac. 579, 110 Pac. 535 (1910); Haight v. Costanich, 184 Cal. 426, 431-432, 194 Pac. 26 (1920); In re Doan Creek, 125 Wash. 14, 25, 215 Pac. 343 (1923). |